Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, September 24, 2018

Podcast: Ethical Considerations in Representing Clients in Connection With Family Businesses

ACTEC_FoundationWho is the client in the context of representing clients in connection with the family business?

To learn more about this topic, listen to the latest ACTEC Trust & Estate Talk podcast with ACTEC Fellows John Rogers of Los Angeles and Lee Osborne of Roanoke, Virginia entitled Ethical Considerations in Representing Clients in Connection With Family Businesses.

September 24, 2018 in Professional Responsibility | Permalink | Comments (0)

Friday, September 21, 2018

Clients Who Lose a Spouse Require Both Empathy and Skill

Calla-liliesAccording to a new Merrill Lynch/Age Wave Study, nationwide 53% of widows did not financially prepare for when their spouse passed away. Dan Lash, a partner at Vienna, Va.-based VLP Financial Advisors, advised calculating the value of marital property within six months of a spouse’s death. “An appraisal will determine what the gain is and set a new cost basis in the event you sell the home five years later,” said Lash.

Another study from Merrill Lynch found that among widows, four-in-10 of them found widowhood as a trigger to begin working with a financial advisor. “They are in their 70s and 80s and single again for the first time in years,” said Tom Balcom, a financial advisor at 1650 Wealth Management based in Lauderdale by the Sea, Florida.

Unlike older clients that have never been married or perpetual bachelors, widows and widowers are in mourning for their loved one. “The danger is for the widow to be overwhelmed with grief and to allow finances to take a backseat, which makes decisions even tougher to deal with later,” said Lisa Margeson, head of retirement client experience and communications at Bank of America Merrill Lynch.

“Widowed clients are often unsure and scared because they don’t want to be taken advantage of,” said Cary Carbonaro, managing director of United Capital of New York and New Jersey and 2014 CFP Board Ambassador.

See Juliette Fairley, Clients Who Lose a Spouse Require Both Empathy and Skill, Financial Advisor, September 11, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

 

September 21, 2018 in Current Affairs, Death Event Planning, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Friday, September 14, 2018

Three Psychological Factors that Define Client Interactions

FruedEstate planners can expect to face three different psychological phenomena in their interactions with clients: transference, countertransference, and triangles in relationships. Sometimes these occurrences can be positive, negative, or simply benign. Being aware of them and their effects can increase the likelihood that they are not detrimental to your relationship with your clients.

"Transference” is a phenomenon in which people transfer feelings and attitudes, often subconsciously, from a person or situation in their past onto a present person or situation. It may involve the projection of a mental representation of a previous experience or person on to the present situation or person with whom they’re interacting. It could be prior negative interactions with attorneys, or a general idea about the current situation.

Countertransference is defined as the often subconscious response of the recipient person to the client’s actions or perceived actions. It could involve professional or income bias, as in if an estate planner has dealt with unruly or rude clients of a certain profession the planner now may believe that everyone in that profession is the same way and not be as open-minded to the new client as they should.

According to Dr. Bowen, a psychiatrist and professor of psychiatry and a pioneer in the area of family systems theory back in the 1950s, a two-person system is unstable because it tolerates little tension before one or both participants “triangle in” a third person to reduce their anxiety that the tension between the participants caused. The third entity forming the triangle could be the estate planner themselves, another family member, a deceased person, or even an inanimate object or possession.

See L. Paul Hood, Jr, Three Psychological Factors that Define Client Interactions, Wealth Management, September 6, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

September 14, 2018 in Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Thursday, August 30, 2018

Caring for Aging Parents - When the Child Watches Over the Parent

ManhattanTracey Dewart faced a daunting task last summer: moving her 84-year-old mother who suffered from Alzheimer's, Aerielle, from her Manhattan apartment to an assisted living facility in Brooklyn to be reunited with Tracey's father. To help pay for her mother’s care, Ms. Dewart relied on an investment account at J.P. Morgan Securities that her father had opened eight years prior. But Ms. Dewart found that the account had been charged around 10 times the commission that an account of that size should have been charged.

Ms. Dewart found that Trevor Rahn, the broker who handled her father's account, had sold two-thirds of the portfolio in one month, and then reinvested most of the proceeds, yielding about $47,600 in commissions, according to her attorney. A statement listed all 344 trades that month as “unsolicited” — meaning that they were the customer’s idea, not the broker’s. But Ms. Dewart, who handled authorizations for the account, said that she had not given Rahn permission for those trades.

Ms. Dewart considered taking J.P. Morgan to arbitration as allowed by the customer agreement, but she settled instead for a sum that she is prohibited from discussing.

There exists a murky regulatory territory that brokers inhabit - they are not necessarily fiduciaries, meaning they do not always have to act in a client’s best interest. Typically, brokers only have to recommend investments that are “suitable,” a lower standard.

See Tara Siegel Bernard, Caring for Aging Parents, With an Eye on Their Broker Handling Their Savings, New York Times, August 24, 2018.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

August 30, 2018 in Current Affairs, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Wednesday, August 29, 2018

CLE on How to Handle the Probate Process

CLEThe National Business Institute is holding a conference entitled, How to Handle the Probate Process, on Thursday, September 13, 2018, at the Holiday Inn Express Charleston-Civic Center in Charleston, West Virginia. Provided below is a description of the event:

Program Description

A Comprehensive Guide to Probate

Are you confident you can handle a probate case when it lands on your desk? Are you familiar with the proper procedures to use along with the applicable laws? This insightful course will give you detailed, step-by-step information to proficiently navigate through the process - register today!

  • Walk through the initial steps of opening a probate case with tips from seasoned practitioners.
  • Learn how to implement a complete estate timetable in order to know what needs to be done - and when.
  • Effectively guide the executor and the administrator through their various duties in the probate process.
  • Avoid problems arising from creditors' claims and insolvency with our powerful strategies.
  • Discover the secrets to confidently handling a spouse's elective share.
  • Review ways to effectively handle disagreements between beneficiaries and adhere to the guidelines of precedence in case of intestacy.
  • Follow thorough closing procedures so accounting is complete before distribution takes place.

Who Should Attend

This basic level seminar will provide those who have limited probate experience with tips on successfully handling a probate case. This comprehensive seminar will benefit:

  • Attorneys
  • Accountants and CPAs
  • Financial Planners and Wealth Managers
  • Tax Professionals
  • Trust Officers
  • Paralegals

Course Content

  1. Opening the Estate in Probate Court - Initiating the Process
  2. The Personal Representative's Responsibilities
  3. Inventory: Collecting, Maintaining and Managing Assets
  4. Handling Debts and Expenses in Probate
  5. Ethical Issues in Probate
  6. The Spouse's Elective Share and Probate Estate
  7. The Laws of Intestacy and How They May Apply
  8. Closing and Distributing the Probate Estate

Continuing Education Credit

Continuing Legal Education – CLE: 8.00 *

Financial Planners – Financial Planners: 8.00

International Association for Continuing Education Training – IACET: 0.70

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 8.00 *

* denotes specialty credits

August 29, 2018 in Conferences & CLE, Estate Planning - Generally, Intestate Succession, Professional Responsibility, Wills | Permalink | Comments (0)

Monday, August 27, 2018

Article on Running Past Landmines – The Estate Attorney’s Dilemma: Ethically Counseling the Client With Alzheimer’s Disease

Alz2Joseph Karl Grant published an Article entitled, Running Past Landmines – The Estate Attorney’s Dilemma: Ethically Counseling the Client With Alzheimer’s Disease, Elder Law Studies eJournal (2016). Provided below is an Abstract of the article:

This Article examines the ethical dilemmas faced by attorneys who represent clients suffering from Alzheimer's disease. To do so, this Article raises three (3) hypothetical case studies, and applies the ABA Model Rules of Professional Conduct, and the American College of Trust and Estate Counsel ("ACTEC") Commentaries, where appropriate, to those hypothetical case studies. Additionally, this Article proposes initiatives to ameliorate the lack of awareness and discussion of Alzheimer's disease in the law school curriculum, and finally, modest initiatives that the practicing bar can embrace to further a discussion and awareness among practicing attorneys about the ethical dilemma attorneys face in their daily interaction with actual and potential clients suffering from Alzheimer's disease. This article's objectives are twofold. First, the intention is to use this Article as a vehicle to expose law students, legal educators, practicing attorneys, policymakers, and layperson observers to the impact, medical symptoms and manifestations of Alzheimer's disease in accessible and easy to understand terms. Second, to use this Article as a tool for teaching, raising understanding, and providing guidance on a multitude of ethical considerations that law students (who will soon be lawyers) and practicing members of the bar should consider while being exposed to actual or potential clients who suffer from Alzheimer's disease.

August 27, 2018 in Articles, Current Affairs, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Friday, August 17, 2018

Your Secret’s Safe with Your Estate Planning Attorney... Maybe [Colorado]

ShhWhen a client's intent is at issue in a will contest suit, who better to ascertain the client's intentions than that of their estate planning attorney? However, due to client-attorney privilege, many confidential pieces of information must be included in that privilege, even after death. In  Swidler & Berlin v. United States, 524 U.S. 399, 406 (1998), the Supreme Court stated that certain things cannot be forced from the attorney as it "may result in the posthumous exposure of detrimental information concerning a client’s reputation or impose possible harm to friends and family."

Colorado allows the client-attorney privilege to extend past death, and thus the personal representative stands in for the descendant and therefore can waive the privilege. Colorado also recognizes the testamentary exception in which the attorney may, but does not have to, disclose privileged communications that would otherwise be protected if sought by the decedent’s heirs in a will contest suit.

The Colorado Bar Association Ethics Committee has also issued a formal ethics opinion that in the absence of the client or the client's representative consent to disclose information, a court order may be required.

See Lauren A. Morris, Your Secret’s Safe with Your Estate Planning Attorney, or is it?, Lexology, August 15, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

August 17, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Professional Responsibility, Wills | Permalink | Comments (0)

Monday, July 16, 2018

CLE on 30 Steps to Perfect Probate

The National Business Institute is holding a conference entitled, 30 Steps to Perfect Probate, on Thursday, October 11, 2018 - Friday, October 12, 2018, at the Embassy Suites by Hilton Jacksonville Baymeadows in Jacksonville, Florida. Provided below is a description of the event:

Program Description

Gain Valuable Strategies for Every Step of the Probate Process

Are you confident you're taking advantage of every strategic opportunity the probate process has to offer? Experienced faculty will share their insights into maximizing the benefits of each step at this essential program. With a special focus on strategic decision-making to minimize tax burdens, speed up the process and alleviate conflict; this guide to probate is just what you need to take your practice to the next level. Register today!

  • Spend two full days learning how to strategically navigate the probate process.
  • Shore up your knowledge with a tactical guide to probate inventory - and leave no stone unturned.
  • Get tips from the pros on how to tackle creditor claims and troubleshoot debt repayment.
  • Minimize tax burdens for both the decedent and the beneficiaries with a full guide to timely and prudent tax planning and reporting.
  • Maximize the use of exceptions when handling Medicaid estate recovery.
  • Hone your final disbursements skills to prevent disputes and re-openings.
  • Use probate litigation to its fullest advantage.

Who Should Attend

This two-day, intermediate level seminar is designed for:

  • Attorneys
  • Accountants/CPAs
  • Trust Officers/Administrators/Managers
  • Tax Professionals

Course Content

  1. Probate Process Overview and First Steps
  2. Executor Strategies
  3. Will Admission Techniques
  4. Inventory, Appraisement and Management Tactics
  5. Creditor Claims: Tips From the Pros
  6. Medicaid Estate Recovery Insights
  7. Insolvent Estate Tips and Tricks
  8. Tax Minimization Tactics
  9. Final Accounting Secrets
  10. Distributions: Insights From the Pros
  11. Estate Closing Strategies
  12. Legal Ethics
  13. Probate Litigation Tactics

Continuing Education Credit

Continuing Legal Education – CLE: 14.50 *

International Association for Continuing Education Training – IACET: 1.20

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 14.00 *

* denotes specialty credits

July 16, 2018 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Income Tax, Intestate Succession, Professional Responsibility, Wills | Permalink | Comments (0)

Friday, June 22, 2018

CLE on Probate and Trust Litigation

CLE
The National Business Institute is holding a conference entitled, Probate and Trust Litigation, on Tuesday, June 26, 2018, at the Cobb Galleria Centre in Atlanta, Georgia. Provided below is a description of the event:

Program Description

Real-World Insights for Both Estate Litigators and Planners

Fiduciary problems, family dynamics, creditor issues, unclear estate plans . . . disputes can arise from many areas of trusts and estates. Do you know how to prevent fights, settle them efficiently or move a case through court when litigation is unavoidable? Our seasoned faculty will provide you with practical instruction and tips on handling common controversies. From will contests to fiduciary litigation and more, don't miss this opportunity to build your skills - register today!

  • Learn how to handle will contests and trust fights, interpretation issues and reformations.
  • Uncover the mechanics of proving or disproving undue influence/lack of capacity.
  • Find out when and how to remove a fiduciary.
  • Explore how to resolve disputes with accountings - or prevent them from happening in the first place.
  • Discover effective ways to settle disputes to avoid costly and protracted litigation.
  • Get a refresher on litigation procedures and rules you need to know.
  • Define who your client is to avoid conflicts of interest and other problems.

Who Should Attend

This intermediate level seminar is designed for attorneys. Accountants and paralegals may also benefit.

Course Content

  1. Wills and Trusts: Contesting, Interpreting, Reforming
  2. Testamentary Capacity and Undue Influence in Litigation
  3. Handling Claims Against Fiduciaries
  4. Disputing Accountings, Distributions and Creditor Claims
  5. Settlement Tips
  6. Navigating Court Rules, Processes and Procedures
  7. Applying Legal Ethics Rules and Guidelines

Continuing Education Credit

Continuing Legal Education – CLE: 6.00 *

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 7.00 *

* denotes specialty credits

June 22, 2018 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Thursday, June 21, 2018

Lawyer Stole $328,000 from Clients and Firm According to the FBI

FBIAnother estate planning attorney from New York has been arrested last week for allegedly stealing money from clients, but this time also from the firm that he was employed at. Albert Hessberg III, 63, worked at the firm of Barclay Damon from 1981 until he was fired this past March. "The FBI and federal prosecutors in Albany are still investigating Hessberg's alleged thefts that could be in the range of $1 million to $3 million." Hessberg is being charged with mail and wire fraud, and faces up to 20 years in prison and a $250,000 fine if convicted.

Hessberg was the executor for a client only referred to as "A.R." who left an estate of $550,000 when he died in 2007. The assets were to be left in a trust to the client's wife, "C.R.," and then trusts to benefit the couple's children and grandchildren. When "C.R." passed away in 2010, she also had an estate of about $314,000. The FBI claims that there is no evidence that Hessberg ever set up trusts for the couple's children or grandchildren. Hessberg even emailed one of the beneficiaries and claimed, "that distributing the assets was complicated and he needed more time."

See Robert Gavin, Feds: Lawyer Stole $328,000 from Clients, Firm, Times Union, June 14, 2018.

June 21, 2018 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Professional Responsibility, Trusts | Permalink | Comments (0)